To Mars and Beyond: Finding Equilibrium between Private and Global Property Rights in Commercial Asteroid Mining

By Aleksandra Marinova, LLB Law (International) Graduate 2017

30 October 2017

Aleksandra Marinova graduated with an upper second class LLB Law (International) degree in July 2017. She is a business consultant working on various space projects with the UK Students for Exploration and Development of Space, the UN's Space Generation Advisory Council, and the Royal Astronomical Society. Her dissertation was supervised by Dr Sophia Kopela.

My dissertation identified conflicts between the international regime of space law and private property rights regarding the mining of asteroids for profit. The technical feasibility of this ambitious mission was proven decades ago, in the 1970’s. In 2017, there is an expanding and stronger private space industry which conducts a wide variety of activities once reserved exclusively for governmental agencies. My research analysed the problems with the current framework governing outer space both on a national and international level and attempted to answer the question whether asteroid mining is legal at all. The dissertation discussed wording of the Outer Space Treaty 1967 (OST) and Moon Agreement 1979 (MA) with the understanding that these documents have been drafted in the peak of the Cold War and their meaning varies significantly when interpreted in the age of private space exploration. I aimed to demonstrate that asteroid mining is most definitely legal so long as it is conducted in compliance with the global provisions of benefit sharing and non-appropriation principles.

The first issue that the dissertation concentrated on is the provision contained in Art. I OST that exploration and use of space are “province of mankind” – a notion that is not contained anywhere else in international legislation. The two conflicting points about this article are whether it constitutes a rule of international customary law and whether outer space is res communis omnium – an object which cannot be owned by anyone but it’s free to use by everyone. Based on the travaux préparatoires of the Outer Space Treaty and the extended debates on the principle of international level, I concluded that the norm is indeed one of customary law as it was intended to carry binding force and state-parties to the treaty treated it as such. Additionally, so long as companies or states engage in exploitative activities in a non-exclusive manner, limited property rights may be developed. However, the main concern that remained was the requirement to conduct mining for the benefits of all countries, irrespective of their economic and scientific development.

Another hurdle in the way of private companies exploiting the natural resources of asteroids for profit is the prohibition of national appropriation contained in Art. II OST. When coupled with Art. IV, which requires states to take responsibility for actions of their nationals, it verified the status of outer space as res communis omnium but it also questions the true legality of the use of natural resources beyond Earth’s atmosphere. An express limitation is contained in Art. II OST and in Art. 11 MA, which is the absolute prohibition of national appropriation of celestial bodies. As treaties are signed and ratified by states there is a serious discussion whether it extends to private enterprises and individuals. One way to look at the issue is that private actors are either created by a state or a national of a state and that would mean that the provision would ban them from exploiting asteroid materials.

However, one little detail of Art. 11(3) MA is what could lay the foundation of property claims over materials extracted from an asteroid and this is the inclusion of “in place” in the wording of the article. Based on this, a distinction was drawn between natural resources of celestial bodies and natural resources extracted from celestial bodies. This would make asteroid mining completely legal as the nature of the whole operation is to extract materials from an asteroid and not to claim the whole asteroid as private property.

The last significant problem with the legality of asteroid mining was the provision in the Moon Agreement that outer space constitutes part of the “common heritage of mankind”. The meaning of this provision differs greatly between developed and developing countries. Whilst it is widely understood that the prohibition of national appropriation, preservation of space environment, and equitable sharing are contained in the common heritage principle, it is arguable whether it carries any obligations for state parties. Even though the common heritage doctrine is contained in other international instruments, in space law it is not considered a rule of customary law simply because it lacks acceptance. The MA has only 17 state-parties as of January 2017 and none of them is any of the spacefaring nations.

The problem with benefit sharing among all nations was dealt with in a manner analogous to the one established in the UN Convention on the Law of the Sea and the practice of fishing. No one can own the high seas, but everyone is allowed to fish in them. This would mean that it is left to national legislation to regulate and supervise the activities of its nationals, either enterprises or individuals, and such a regime would definitely comply with the principles discussed above. Some countries have already implemented such legislation, for example, the USA and Luxembourg, which have established frameworks for conducting mining activities in space but also preclude any claims of appropriation of celestial bodies, jurisdiction and exclusive rights.

Lastly, I made recommendations of a new system of regulation of space mining by establishing an International Space Resources Authority built on the model of the Antarctic Authority, a Dispute Resolution Mechanism based on extra-national arbitration procedures. I also discussed the possibility of a new international convention on the exploitation of space resources.

My research concluded that asteroid mining is going to happen despite all of the uncertainty and the need to balance the interests of developed and developing countries and private explorers. The legality of it is still under question, however none of the international instruments prohibits it explicitly. The study was done with the understanding the space is our new final frontier. Time and more efforts are necessary for us to fully comprehend the vastness of outer space and properly prepare for being interplanetary species.

About the Author

My research concluded that asteroid mining is going to happen despite all of the uncertainty and the need to balance the interests of developed and developing countries and private explorers. The legality of it is still under question, however none of the international instruments prohibits it explicitly.